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Saturday, April 09, 2011

Todd Rokita Can't Have It Both Ways

Former Secretary of State Todd Rokita did something he was not legally obliged to do when Democrats belatedly raised the issue of whether Charlie White had violated Indiana law by allegedly casting a vote in a precinct in which he did not reside and which was not situated within the town council district he represented on the Fishers Town Council. He tasked the general counsel for his office to investigate the allegations and prepare a report of his findings. Rokita then declined to release the findings of his report to the Democratic operative who first raised the issue of White's alleged voting irregularity, claiming its findings were covered by the deliberative materials exception to Indiana's Access to Public Records Act. The Public Access Counselor's Office issued an opinion backing Rokita's claimed exemption, noting the report was also exempted from disclosure under the attorney work production exception to APRA. Rokita's office did, however, turn its findings over to a special prosecutor who had been appointed to investigate the allegations at the request of the Hamilton County Prosecutor.

Although the Democratic Party could have gone to court and sought a declaratory action seeking to declare White ineligible to run for Secretary of State based on the alleged violation, it chose not to do so. A declaratory action was the only legal remedy at that point because the deadline for challenging a candidate for the general election's eligibility had long since passed. Media coverage of the allegations against White were extensive prior to the election. By not releasing his report to the public, however, Rokita ensured that the public would not have the benefit of any investigative results until after the election when the special prosecutor completed his work months later, which resulted in a 7-count grand jury indictment against White accusing him of voter fraud and other charges of dubious merit (e.g. lying on a mortgage application and marriage license application about his actual residence).

The Democratic Party waited until White won a landslide election victory over their party's candidate, Vop Osili, to file a contest with the Recount Commission based on the allegation White was ineligible to run for office because he was "illegally registered" to vote. If they prevailed in their petition, their losing candidate would become Secretary of State despite his overwhelming rejection by the voters. In his capacity as Secretary of State, Rokita chaired the Recount Commission which considered the Democratic Party's contest petition against White's election. Rokita refused to recuse himself from the proceedings, even though his office had already investigated White and made some initial findings of his guilt or innocence, and he refused to release the report to attorneys for the Democratic Party who filed the election contest against White. After a short hearing on the matter in December, the Commission on a party-line vote dismissed the Democrat's petition. In dismissing the challenge, Rokita, who is also an attorney, accused the Democrats of engaging in judicial activism by taking up the Commission's time with their election contest petition and suggested their interpretation that a candidate for secretary of state not only had to be a registered voter but also a "legally" registered voter was contrary to the statutory qualification to be a candidate.

Rokita backed White in his race last year to succeed him as Secretary of State and contributed to his campaign. Rokita, too, was a candidate for office last year seeking to replace retiring U.S. Rep. Steve Buyer in Congress. Rokita, now a member of Congress, met with the Indianapolis Star's editorial board. According to an editorial in today's paper, Rokita now feels strongly that White should step down from his office:

In a recent meeting with The Star Editorial Board, White's predecessor, Todd Rokita, scoffed at the notion that the secretary of state has little to do with elections. Rokita, now a U.S. congressman, and other prominent Republicans have called on White to step down.

To say Rokita's views on White are duplicitous is an understatement. Rokita had it within his power to lay out the findings of his office last year prior to the November election, but he instead chose to place politics ahead of principle and hid behind legal technicalities to conceal his findings. If the report he had his general counsel prepare, which he had no legal obligation to prepare in the first place, found that White had violated election law, then he had a greater duty to disclose that findings to the voting public than to conceal it knowing that doing so would help secure White's election to the office. A Democratic judge, Marion Co. Circuit Court Judge Louis Rosenberg, has now concluded the Rokita-chaired Recount Commission violated Indiana law by declining to hear the petition brought challenging White's eligibility to run for the office. It remains to be seen whether the judge's ruling will stand given White's attorney's decision to appeal it to a higher court. What is clear, though, is that Rokita wants to have it both ways. If it turns out his investigative report came to the same conclusions reached by the special prosecutor investigating the allegations, then perhaps Rokita should be taking a look at the man in the mirror instead of casting judgment on White's actions.

Let me add that I think nobody has clean hands in this mess. White appears to have played fast and loose with the rules so he could continue serving on the Fishers Town Council. Democrats gamed the system by waiting until late in the campaign to spring the issue on White in hopes of winning the election rather than using pre-election procedures to challenge his candidacy. Failing that, they now want the courts to overturn the outcome of the election. And Rokita wore his political hat at all times both before and after the election. As is typical of politics today in this country, there is nobody deserving of a profile in courage award here.

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